SURJIT KAUR Vs. JHUJHAR SINGH

JUDGEMENT

(1.) The present appeal is directed against the judgment of the Additional District Judge, Ferozepur , dated February 16, 1978, which was passed in a petition filed by Jhujhar Singh, respondent husband under section 11 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), for the grant of a decree of nullity of marriage against his wife Surjit Kaur, appellant.

(2.) The facts may be briefly noticed. There is no dispute that the marriage between the parties was solemnized on May 24, 1970 and they lived as husband and wife for some time. A son was also born from this wedlock. According to the case of the respondent, the appellant had represented at the time of her marriage with him that she was a spinster but he learnt later on that she was already married to one Sardul Singh of Village Feroze Shah in Ferozepur District. The respondent filed a petition for restitution of conjugal rights under section 9 of the Act, on the ground that she had withdrawn from his society without reasonable cause. The said petition under section 9 of Act was, however, withdrawn in the Court of the Senior Subordinate Judge. Subsequently, the respondent filed another petition under section 11 of the Act with a prayer for the grant of a decree of nullity of marriage. When this petition was under consideration, the parties indicated to the trial Court that they would move a joint petition for divorce in pursuance to the amended provisions of section 13 of the Act. The petition was, therefore, dismissed as having been withdrawn, on October 4, 1976. It transpires that the matter did not end there and once again the respondent filed a second petition under section 11 of the Act on November 11, 1976, claiming a decree of nullity of marriage on the same ground as invoked by him in his earlier petition, i.e., the appellant having a spouse living at the time of her marriage with the respondent. The petition was contested on legal as well as factual grounds. The trial Court framed necessary issues in this case and after considering the evidence produced by the parties, granted a decree of nullity of marriage in favour of the respondent. It is this decision of the learned Additional District Judge which is the subject-matter of attack in the present appeal.

(3.) This appeal has to succeed even on a solitary objection which has been raised by Mr. R.S. Bindra, learned counsel for the appellant that in the wake of the dismissal of the earlier petition under section 11 of the Act filed by the respondent, a second petition on the same cause of action could not have been entertained. It is material to note that this objection as specifically taken in the written statement filed by the appellant and he point in controversy forms the subject-matter of issue No. 2 in this case. The learned Additional District Judge has, however, made an erroneous assessment of the matter and does not appear to have focussed his attention upon the legal position in this behalf. All that he has relied upon are the provisions of Order XXIII, Rule 1, Code of Civil Procedure, which are applicable to proceedings under the Act by virtue of Section 21 of the Act, as per which a discretion is vested in the Court to allow the entertainment of a fresh petition. The is, however, no dearth of authority that the discretion of this nature is to he exercised judiciously and not to the prejudice of any of the parties. The learned Additional District Judge has also observed that merely by entertaining the second petition, the Court had "impliedly permitted the petitioner to bring the fresh petition". This is a wholly erroneous approach. A permission to file a fresh petition has to be obtained at the time of the dismissal of the first petition and a more routine entertainment of a second petition does not tantamount to an implied permission to bring the second petition.